ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OFAPPEALS FOR THE THIRD CIRCUIT

Today the Court brands two committed
criminal defense attorneys as ineffectiveoutside
the wide range of professionally competent counsel,
Strickland v. Washington,466 U.S. 668, 690
(1984)because they did not look in an old case file and
stumble upon something they had not set out to find. By
implication the Court also labels incompetent the work done by
the three mental health professionals who examined Ronald
Rompilla. To reach this result, the majority imposes on
defense counsel a rigid requirement to review all documents in
what it calls the case file of any prior conviction
that the prosecution might rely on at trial. The Courts
holding, a mistake under any standard of review, is all the
more troubling because this case arises under the Antiterrorism
and Effective Death Penalty Act of 1996. In order to grant
Rompilla habeas relief the Court must say, and indeed does say,
that the Pennsylvania Supreme Court was objectively
unreasonable in failing to anticipate todays new case
file rule.

In my respectful submission it is
this Court, not the state court, which is unreasonable. The
majoritys holding has no place in our Sixth Amendment
jurisprudence and, if followed, often will result in less
effective counsel by diverting limited defense resources from
other important tasks in order to satisfy the Courts new
per se rule. Finally, even if the Court could justify
its distortion of Strickland, Rompilla still would not
be entitled to relief. The Court is able to conclude otherwise
only by ignoring the established principle that it is the
defendant, not the State, who has the burden of demonstrating
that he was prejudiced by any deficiency in his attorneys
performance.

These are the reasons for my
dissent.

I

Under any standard of review the
investigation performed by Rompillas counsel in
preparation for sentencing was not only adequate but also
conscientious.

Rompillas attorneys recognized
from the outset that building an effective mitigation case was
crucial to helping their client avoid the death penalty. App.
516, 576. Rompilla stood accused of a brutal crime. In
January 1988, James Scanlon was murdered while he was closing
the Cozy Corner Cafe, a bar he owned in Allentown,
Pennsylvania. Scanlons body was discovered later the
next morning, lying in a pool of blood. Scanlon had been
stabbed multiple times, including 16 wounds around the neck and
head. Scanlon also had been beaten with a blunt object, and
his face had been gashed, possibly with shards from broken
liquor and beer bottles found at the scene of the crime. After
Scanlon was stabbed to death his body had been set on fire.

Substantial evidence linked Rompilla
to the crime. See generally Commonwealth v.
Rompilla, 539 Pa. 499, 505506, 653 A. 2d 626,
629630 (1995). He was at the Cozy Corner Cafe near
closing time on the night of the murder and was observed going
to the bathroom approximately 10 times during a 1-hour period.
A window in that bathroom, the police later determined, was the
probable point of entry used by Scanlons assailant. A
pair of Rompillas sneakers seized by the police matched a
bloody footprint found near the victims body, and blood
on the sneakers matched the victims blood type.
Rompillas fingerprint was found on one of the two knives
used to commit the murder. Sometime after leaving the bar on
the night of the murder, Rompilla checked into a nearby motel
under a false name. Although he told the police he left the
bar with only two dollars, Rompilla had paid cash for the room
and flashed a large amount of money to the desk clerks. The
victims wallet was discovered in the bushes just outside
of Rompillas motel room. When the police questioned
Rompilla about the murder, his version of events was
inconsistent with the testimony of other witnesses.

Rompilla was represented at trial by
Fredrick Charles, the chief public defender for Lehigh County
at the time, and Maria Dantos, an assistant public defender.
Charles and Dantos were assisted by John Whispell, an
investigator in the public defenders office.
Rompillas defense team sought to develop mitigating
evidence from various sources. First, they questioned Rompilla
extensively about his upbringing and background. App.
668669. To make these conversations more productive they
provided Rompilla with a list of the mitigating circumstances
recognized by Pennsylvania law. Id., at 657. Cf.
Strickland, 466 U.S., at 691 ([W]hen a defendant
has given counsel reason to believe that pursuing certain
investigations would be fruitless or even harmful,
counsels failure to pursue those investigations may not
later be challenged as unreasonable). Second, Charles
and Dantos arranged for Rompilla to be examined by three
experienced mental health professionals, experts described by
Charles as the best forensic psychiatrist around here,
[another] tremendous psychiatrist and a fabulous forensic
psychologist. App. 672. Finally, Rompillas
attorneys questioned his family extensively in search of any
information that might help spare Rompilla the death penalty.
Id., at 493494, 557558, 669670,
729730. Dantos, in particular, developed a very
close relationship with Rompillas family, which was
a constant source of information. Id., at
557, 729. Indeed, after trial Rompillas wife sent Dantos
a letter expressing her gratitude. Id., at 733. The
letter referred to Charles and Dantos as superb human
beings who fought and felt everything
[Rompillas] family did. Ibid.

The Court acknowledges the steps
taken by Rompillas attorneys in preparation for
sentencingbut finds fault nonetheless. [T]he
lawyers were deficient, the Court says, in failing
to examine the court file on Rompillas prior
conviction. Ante, at 7.

The prior conviction the Court refers
to is Rompillas 1974 conviction for rape, burglary, and
theft. See Commonwealth v. Rompilla, 250 Pa.
Super. 139, 378 A. 2d 865 (1977). Before the sentencing
phase of the capital case, the Commonwealth informed
Rompillas attorneys that it intended to use these prior
crimes to prove one of the statutory aggravating
circumstancesnamely, that Rompilla had a
significant history of felony convictions involving the
use or threat of violence to the person. 42 Pa. Cons.
Stat. §9711(d)(9) (2002). Rompillas attorneys were
on notice of the Commonwealths plans, and from this the
Court concludes that effective assistance of counsel required a
review of the prior conviction case file.

A per se rule requiring
counsel in every case to review the records of prior
convictions used by the State as aggravation evidence is a
radical departure from Strickland and its progeny. We
have warned in the past against the creation of specific
guidelines or checklist[s] for judicial evaluation
of attorney performance. 466 U.S., at 688. See also
Wiggins v. Smith, 539 U.S. 510, 521
(2003); Roe v. Flores-Ortega,528 U.S. 470, 477
(2000). No particular set of detailed rules for
counsels conduct can satisfactorily take account of the
variety of circumstances faced by defense counsel or the range
of legitimate decisions regarding how best to represent a
criminal defendant. Any such set of rules would interfere with
the constitutionally protected independence of counsel and
restrict the wide latitude counsel must have in making tactical
decisions. Indeed, the existence of detailed guidelines for
representation could distract from the overriding mission of
vigorous advocacy of the defendants cause.
Strickland, 466 U.S., at 688689 (citations
omitted). For this reason, while we have referred to the ABA
Standards for Criminal Justice as a useful point of reference,
we have been careful to say these standards are only
guides and do not establish the constitutional baseline
for effective assistance of counsel. Ibid. The
majority, by parsing the guidelines as if they were binding
statutory text, ignores this admonition.

The majoritys analysis contains
barely a mention of Strickland and makes little effort
to square todays holding with our traditional reluctance
to impose rigid requirements on defense counsel. While the
Court disclaims any intention to create a bright-line rule,
ante, at 14; see also ante, at 1 (OConnor,
J., concurring), this affords little comfort. The Courts
opinion makes clear it has imposed on counsel a broad
obligation to review prior conviction case files where those
priors are used in aggravationand to review every
document in those files if not every single page of every
document, regardless of the prosecutions proposed use for
the prior conviction. Infra, at 8, 1213. One
member of the majority tries to limit the Courts new rule
by arguing that counsels decision here was not the
result of an informed tactical decision, ante, at
3 (OConnor, J., concurring), but the record gives no
support for this notion. The Court also protests that the
exceptional weight Rompillas attorneys at sentencing
placed on residual doubt required them to review the prior
conviction file, ante, at 14; ante, at 23
(OConnor, J., concurring). In fact, residual doubt was
not central to Rompillas mitigation case.
Rompillas family members did testify at sentencing that
they thought he was innocent, but Dantos tried to draw
attention away from this point and instead use the
familys testimony to humanize Rompilla and ask for mercy.
App. 123149.

The majority also disregards the
sound strategic calculation supporting the decisions made by
Rompillas attorneys. Charles and Dantos were aware
of [Rompillas] priors and aware of the
circumstances surrounding these convictions. Id.,
at507. At the postconviction hearing, Dantos also
indicated that she had reviewed documents relating to the prior
conviction. Ibid. Based on this information, as well
as their numerous conversations with Rompilla and his family,
Charles and Dantos reasonably could conclude that reviewing the
full prior conviction case file was not the best allocation of
resources.

The majority concludes otherwise only
by ignoring Stricklands command that
[j]udicial scrutiny of counsels performance must be
highly deferential. 466 U.S., at 689. According to the
Court, the Constitution required nothing less than a full
review of the prior conviction case file by Rompillas
attorneys. Even with the benefit of hindsight the Court
struggles to explain how the file would have proved helpful,
offering only the vague speculation that Rompillas
attorneys might have discovered circumstances that
extenuated the behavior described by the [rape] victim.
Ante, at 10. What the Court means by
circumstances is a mystery. If the Court is
referring to details on Rompillas mental fitness or
upbringing, surely Rompillas attorneys were more likely
to discover such information through the sources they
consulted: Rompilla; his family; and the three mental health
experts that examined him.

Perhaps the circumstances to which
the majority refers are the details of Rompillas 1974
crimes. Charles and Dantos, however, had enough information
about the prior convictions to determine that reviewing the
case file was not the most effective use of their time.
Rompilla had been convicted of breaking into the residence of
Josephine Macrenna, who lived in an apartment above the bar she
owned. App. 5689. After Macrenna gave him the
bars receipts for the night, Rompilla demanded that she
disrobe. When she initially resisted, Rompilla slashed her
left breast with a knife. Rompilla then held Macrenna at
knifepoint while he raped her for over an hour. Charles and
Dantos were aware of these circumstances of the prior
conviction and the brutality of the crime. Id., at 507.
It did not take a review of the case file to know that
quibbling with the Commonwealths version of events was a
dubious trial strategy. At sentencing Dantos fought vigorously
to prevent the Commonwealth from introducing the details of the
1974 crimes, id., at 1640, but once the transcript
was admitted there was nothing that could be done. Rompilla
was unlikely to endear himself to the jury by arguing that his
prior conviction for burglary, theft, and rape really was not
as bad as the Commonwealth was making it out to be.
Recognizing this, Rompillas attorneys instead devoted
their limited time and resources to developing a mitigation
case. That those efforts turned up little useful evidence does
not make the ex ante strategic calculation of
Rompillas attorneys constitutionally deficient.

One of the primary reasons this Court
has rejected a checklist approach to effective assistance of
counsel is that each new requirement risks distracting
attorneys from the real objective of providing vigorous
advocacy as dictated by the facts and circumstances in the
particular case. The Courts rigid requirement that
counsel always review the case files of convictions the
prosecution seeks to use at trial will be just such a
distraction. Capital defendants often have a history of crime.
For example, as of 2003, 64 percent of inmates on death row
had prior felony convictions. U.S. Dept. of Justice, Bureau of
Justice Statistics, T. Bonczar & T. Snell, Capital Punishment,
2003, p. 8 (Nov. 2004), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/cp03.pdf (as visited
June 16, 2005, and available in Clerk of Courts case
file). If the prosecution relies on these convictions as
aggravators, the Court has now obligated defense attorneys to
review the boxes of documents that come with them.

In imposing this newrule, the
Court states that counsel in this case could review the
entire file with ease. Ante,
10, n. 4. There is simply no support in the record for
this assumption. Case files often comprise numerous boxes.
The file may contain, among other things, witness statements,
forensic evidence, arrest reports, grand jury transcripts,
testimony and exhibits relating to any pretrial suppression
hearings, trial transcripts, trial exhibits, post-trial motions
and presentence reports. Full review of even a single prior
conviction case file could be time consuming, and many of the
documents in a file are duplicative or irrelevant. The Court,
recognizing the flaw in its analysis, suggests that cases
involving warehouses of records will call for
greater subtlety. Ibid. Yet for all we know,
this is such a case. As to the time component, the Court tells
us nothing as to the number of hours counsel had available to
prepare for sentencing or why the decisions they made in
allocating their time were so flawed as to constitute deficient
performance under Strickland.

Todays decision will not
increase the resources committed to capital defense. (At the
time of Rompillas trial, the Lehigh County Public
Defenders Office had two investigators for 2,000 cases.
App. 662.) If defense attorneys dutifully comply with the
Courts new rule, they will have to divert resources from
other tasks. The net effect of todays holding in many
casesinstances where trial counsel reasonably can
conclude that reviewing old case files is not an effective use
of timewill be to diminish the quality of representation.
We have consistently declined to impose mechanical rules
on counseleven when those rules might lead to better
representation, Roe v. Flores-Ortega, 528
U.S., at 481; I see no occasion to depart from this approach in
order to impose a requirement that might well lead to worse
representation.

It is quite possible defense
attorneys, recognizing the absurdity of a one-size-fits-all
approach to effective advocacy, will simply ignore the
Courts new requirement and continue to exercise their
best judgment about how to allocate time and resources in
preparation for trial. While this decision would be
understandableand might even be required by state ethical
rules, cf. Pa. Rules of Professional Conduct, Preamble, and
Rule 1.1 (2005)it leaves open the possibility that a
defendant will seek to overturn his conviction based on
something in a prior conviction case file that went unreviewed.
This elevation of needle-in-a-haystack claims to the status of
constitutional violations will benefit undeserving defendants
and saddle States with the considerable costs of retrial and/or
resentencing.

Todays decision is wrong under
any standard, but the Courts error is compounded by the
fact that this case arises on federal habeas. The Pennsylvania
Supreme Court adjudicated Rompillas
ineffective-assistance-of-counsel claim on the merits, and this
means 28 U.S.C.
§ 2254(d)s deferential standard of review
applies. Rompilla must show that the Pennsylvania Supreme
Court decision was not just incorrect or erroneous,
but objectively unreasonable. Lockyer v.
Andrade,538
U.S. 63, 75 (2003) (citing Williams v. Taylor,
529 U.S. 362,
410, 412 (2000)). He cannot do so.

The Court pays lipservice to the
Williams standard, but it proceeds to adopt a rigid,
per se obligation that binds counsel in every case and
finds little support in our precedents. Indeed,
Strickland, the case the Court purports to apply, is
directly to the contrary: Most important, in adjudicating
a claim of actual ineffectiveness of counsel, a court should
keep in mind that the principles we have stated do not
establish mechanical rules. 466 U.S., at 696. The
Pennsylvania Supreme Court gave careful consideration to
Rompillas Sixth Amendment
claim and concluded that counsel reasonably relied upon
their discussions with [Rompilla] and upon their experts to
determine the records needed to evaluate his mental health and
other potential mitigating circumstances.
Commonwealth v. Rompilla, 554 Pa. 378,
385386, 721 A. 2d 786, 790 (1998). This decision
was far from unreasonable. The Pennsylvania courts can hardly
be faulted for failing to anticipate todays abrupt
departure from Strickland.

Even accepting the Courts
misguided analysis of the adequacy of representation by
Rompillas trial counsel, Rompilla is still not entitled
to habeas relief. Strickland assigns the defendant the
burden of demonstrating prejudice, 466 U.S.,at 692.
Rompilla cannot satisfy this standard, and only through a
remarkable leap can the Court conclude otherwise.

The Courts theory of prejudice
rests on serendipity. Nothing in the old case file diminishes
the aggravating nature of the prior conviction. The only way
Rompillas attorneys could have minimized the aggravating
force of the earlier rape conviction was through Dantos
forceful, but ultimately unsuccessful, fight to exclude the
transcript at sentencing. The Court, recognizing this problem,
instead finds prejudice through chance. If Rompillas
attorneys had reviewed the case file of his prior rape and
burglary conviction, the Court says, they would have stumbled
across a range of mitigation leads. Ante,
at 15.

The range of leads to which the Court
refers is in fact a handful of notations within a single
10-page document. The document, an Initial Transfer
Petition, appears to have been prepared by the
Pennsylvania Department of Corrections after Rompillas
conviction to facilitate his initial assignment to one of the
Commonwealths maximum-security prisons. Lodging
3140.

Rompilla cannot demonstrate prejudice
because nothing in the record indicates that Rompillas
trial attorneys would have discovered the transfer petition, or
the clues contained in it, if they had reviewed the old file.
The majority faults Rompillas attorneys for failing to
learn what the Commonwealth knew about the crime,
discover any mitigating evidence the Commonwealth would
downplay, and anticipate the details of the
aggravating evidence the Commonwealth would emphasize.
Ante, at 10. Yet if Rompillas attorneys had
reviewed the case file with these purposes in mind, they almost
surely would have attributed no significance to the transfer
petition following only a cursory review. The petition, after
all, was prepared by the Bureau of Correction after
Rompillas conviction for the purpose of determining
Rompillas initial prison assignment. It contained no
details regarding the circumstances of the conviction.
Reviewing the prior conviction file for information to counter
the Commonwealth, counsel would have looked first at the
transcript of the trial testimony, and perhaps then to
probative exhibits or forensic evidence. There would have been
no reason for counsel to read, or even to skim, this obscure
document.

The Court claims that the transfer
petition would have been discovered because it was in the
same file with the transcript, ante, at 15,
but this characterization is misleading and the conclusion the
Court draws from it is accordingly fallacious. The record
indicates only that the transfer petition was a part of the
same case file, but Rompilla provides no indication of the size
of the file, which for all we know originally comprised several
boxes of documents. App. 508, 571, 631. By the time of
Rompillas state postconviction hearing, moreover, the
transfer petition was not stored in any file at
allit had been transferred to microfilm. Id., at
461. The Court implies in a footnote that prejudice can be
presumed because Pennsylvania conspicuously failed to
contest Rompillas inevitable-discovery argument.
Ante, at 15, n. 8. The Commonwealths
strategy is unsurprising given that discussion of the prior
conviction case file takes up only one paragraph of
Rompillas argument, Brief for Petitioner 3536, but
it is also irrelevant. It is well established that Rompilla,
not the Commonwealth, has the burden of establishing prejudice.
Strickland, supra, at 694.

The majority thus finds itself in a
bind. If counsels alleged deficiency lies in the failure
to review the file for the purposes the majority has
identified, then there is no prejudice: for there is no
reasonable probability that review of the file for those
purposes would have led counsel to accord the transfer petition
enough attention to discover the leads the majority cites.
Prejudice could only be demonstrated if the deficiency in
counsels performance were to be described not as the
failure to perform a purposive review of the file, but instead
as the failure to accord intense scrutiny to every single page
of every single document in that file, regardless of the
purpose motivating the review. At times, the Court hints that
its new obligation on counsel sweeps this broadly. See
ante, at 10, n. 4 (The ease with which
counsel could examine the entire file ); ante,
at 1011, n. 5 ([C]ounsel had no way of
knowing the context of the transcript and the details of the
prior conviction without looking at the file as a whole).
Surely, however, the Court would not require defense counsel
to look at every document, no matter how tangential, included
in the prior conviction file on the off chance that some
notation therein might provide a lead, which in turn might
result in the discovery of useful information. The
Constitution does not mandate that defense attorneys perform
busy work. This rigid requirement would divert counsels
limited time and energy away from more important tasks. In
this way, it would ultimately disserve the rationale underlying
the Courts new rule, which is to ensure that defense
counsel counter the States aggravation case
effectively.

If the Court does intend to impose on
counsel a constitutional obligation to review every page of
every document included in the case file of a prior conviction,
then todays holding is even more misguided than I
imagined.

***

Strickland anticipated the
temptation to second-guess counsels assistance
after conviction or adverse sentence and cautioned that
[a] fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsels
challenged conduct, and to evaluate the conduct from
counsels perspective at the time. 466 U.S., at
689. Today, the Court succumbs to the very temptation that
Strickland warned against. In the process, the majority
imposes on defense attorneys a rigid requirement that finds no
support in our cases or common sense.